Comments: Regulation Dehumanizes Mediation

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Diane Levin, Boston   12/03/09
Luis, as someone possessed of a subversive nature who shares your distrust of authority figures, I salute you for raising questions about the wisdom of regulation of the practice of mediation. I myself for the present oppose public regulation of mediators - for now at least until I'm persuaded otherwise. However, I respectfully disagree with your conclusions and have questions of my own for you. I'm curious. What evidence do you have to support your argument that regulation will dehumanize mediation? The practice of medicine and the practice of psychology, for example, are regulated. So are many other occupations. Regulation is intended to protect the humans that these occupations are designed to serve. Regulation ensures that practitioners are adequately trained and prepared for practice by accredited institutions, have liability insurance in the event of malpractice, hew to standards of ethical practice, and that mechanisms are in place to rehabilitate, suspend, or discipline the incompetent. How do those things in any way dehumanize the practice of mediation? With all due respect, I would also question some of your premises. You write for example that "There are no rules in reaching the agreement and all are considered equals. Both the mediated and the mediator are recognized as biased and prejudiced." Considered equals? I'm not sure that some of the unrepresented complainants or plaintiffs I've seen in courthouse or agency corridors would agree - some feel disempowered and are no more trusting of the mediator than they are of the creditor or lawyer on the other side of the table. And in my time I've seen poorly trained mediators attempt to bully the unrepresented and the disempowered into bad agreements (which seems to me to be good reason for regulation). As far as both mediator and mediated being "recognized as biased and prejudiced", I'd ask, recognized by whom? Surely not by themselves. Most people, mediators included, are overconfident in their ability to be impartial and would reject the idea that their judgments are the product of bias or prejudice. Just ask the cognitive psychologists or the folks at Project Implicit. We'll have to come a long way before mediators and others are willing to recognize and own up to their own cognitive flaws. You also write that regulation of mediation "prevents creativity and progress". Again, might I ask where's your support for that claim? I'm having trouble seeing it and ask your help. Architects must be licensed, but regulation has not hampered their creativity. Regulation has not prevented lawyers from seeking innovations in the delivery of justice, such as collaborative law. And regulation has not deterred health care professionals in their search for cures to the diseases that afflict humankind. Please then help me understand why regulation would deter innovation among mediators. Luis, thanks again. I hope that mediators never lose sight of the "human factor" - as Dean Pound once described it - that stands at the heart of conflict resolution. And let us all continue to engage with the arguments on all sides of the debate over regulation.

Mioara  , Seabrook TX   12/01/09
I entirely agree with your statement. Mediation has to be an evolutionary systematic process.

David Bogan, Auckland NZ  david@davidbogan.com     12/01/09
As usual Luis is concise, accurate and to the point, and I agree entirely with his sentiments. Mediation is meant to be about assisting the human condition to co-exist harmoniously, and if not that ideal, then at least co-operatively or collaboratively and we cannot assist in this process by resorting to rule bound structures as these mainly have the effect of diverting us from the 'function' to the 'form' of our profession. Thank you Luis and I look forward to your next article.

Kristine    12/01/09
I agree with your sentiments fully! Thank you.